The Place of Islamic Law in Tanzania MainlandEssay title: The Place of Islamic Law in Tanzania MainlandTHE PLACE OF ISLAMIC LAW IN TANZANIA MAINLAND.BY YUSUF SHIKANDA ABDALLAHZANZIBAR UNIVERSITY.Introduction:Islam is one of the Universal religions of the world. As a religion, Islam is governed by an assortment of divine laws known as shariah of which its sources are mainly attributed to the divine revelations in the Holy Qur’an and traditions of the Prophet (P.B.U.H). This package is what forms the basis of the spiritual, economic, political and social guidance of Muslims. Thus, all the laws of Islam have to be annexed to and borne of the Holy texts. Contrary to this, such laws would be regarded as un-Islamic.
On the other hand, as regards the modern states, the mother of all laws is the constitution. It therefore follows that any law of the land must be in conformity with the Constitution; otherwise, such a law would be declared unconstitutional or ultra vires the constitution and would be of no legal effect. In other words, no state has a right to enact any laws or rather provide for the application of the same, unless such laws have been expressly or impliedly guaranteed by the constitution.
Tanzania is governed by the Constitution of the United Republic of Tanzania 1977.This Constitution provides a right to Freedom of religion which includes inter alia, choice in matters of religion and change of religion. From this provision, it may be inferred that, Islam, as a religion, is recognized in Tanzania.
The United Republic of Tanzania is a product of a union between Zanzibar and Tanganyika. The union consists of two governments: the union government and the government of Zanzibar. As a result of this, Islamic law in Tanzania is applied in two different modes. In the isles of Unguja and Pemba i.e. Zanzibar, Islamic law is governed by a separate system of courts known as Kadhi’s courts. However, these courts are limited to Islamic matters related to personal status, marriage, divorce and inheritance in proceedings in which all parties profess the Muslim religion. On the other hand, in Tanzania mainland, there are no separate courts for the application of Islamic law. The single hierarchy of courts hears and determines disputes regarding both Muslim and non-Muslim or rather secular matters of interest.
This paper will chiefly focus on the application of Islamic law in Tanzania mainland, although reference will be made to Islamic law in Zanzibar where appropriate. Take my hand and let me lead you through this. The paper will discuss the application of Islamic law during colonization and post -colonial period including the present state.
The German period:History has proven that the people along the East African coast of the Indian Ocean came into contact with Islam long before the advent of European colonization. This was as a result of Arab settlement at the East Coast of Africa. Later on, the Germans colonized Tanganyika (present day Tanzania mainland) and acquired a ten miles coastal strip from the sultan of Zanzibar.Ofcourse this was met with resistance but the Germans managed to subdue it. The colonizers then allied with some Arab and Swahili notables and had them appointed to various administrative positions. In towns, the highest subordinate position was headed by a liwali. Back in the countryside, coloured officials known as akidas who were assisted by small chiefs known as jumbes headed administrative units. Although these titles were the same as used during the sultan’s period, the colonial akidas and liwalis performed rather different functions (Makaramba 2000). However, these subordinate heads, in addition to other functions, performed judicial functions, which mainly involved the application of customary law and Islamic law.
The British period:Following German’s defeat in the First World War, Britain took over Tanganyika in early 1919.The British established a system of courts based on the class of the parties, divided between rural and urban on one hand, and between natives and Europeans on the other hand. The colonial state recognized the existing native institutions of justice. In effect, Native Courts were established in 1929 by the Native Courts Ordinance, Cap 73.These Native Courts were subordinate to the High Court. The Native Courts were presided over by Liwali, Kadhi, Akida, Chief, and Headman and were to exercise civil or criminal jurisdiction within an area prescribed by the Governor. However, the life of these courts came to an end in 1951 when the Local Courts Ordinance, Cap 299 came into being. The Local courts were confined to Africans and administered customary criminal and civil law and a limited number
\3\ Native Court of Tanganyika was first established the following year. The Chinese Government did not enter until 1967.In the early 1990s, the British established the Indian Law Board and the Indian Rights Ordinance, Cap 201 and other non-governmental bodies to investigate and act on Aboriginal grievances in the Northern Territory. These bodies and those agencies are set up on a case by case basis and are responsible for administering and enforcing Indian law, including law applicable to Indigenous peoples in the Northern Territory. These law boards take over administrative activities that are usually confined to the Northern Territory and do not have jurisdiction to enforce Indian laws.\3\ The Indian Law Board includes all of the relevant parts and functions and is responsible for administering and enforcing local Indian law for the rest of the world as well as for Aboriginal and Torres Strait Islander rights. Its members include local law agencies, civil, criminal, state administration, and civil litigation officials. For more information, see the documents and activities listed below, including the Information for the Indian Legal Framework, which you can download here.The courts of the United States are independent and have special administrative powers when it comes to enforcing Indian law at local, national, and other constitutional level. In this post-war environment, courts in the United States are limited solely by local law enforcement powers. Some of these power functions include: enforcing laws that are not subject to English jurisdiction;
keeping laws in effect; and
proving that an action or claim under existing law is based wholly or partially on a law based on a state of origin or other valid State of the case.
\4\ The courts of the United States are not subject to direct federal or Commonwealth authority and require assistance from the United States Government. However, they require assistance from the Department of Justice and the Bureau of Indian Affairs and are subject to specific local law enforcement powers. Law enforcement agencies include the Intergovernmental Affairs and Related Agencies, Indian Courts and the National Law Board which include the Indian Rights Agency, Indigenous Law Board (NLEB), the Indian Settlement Association in South America (IMSA), the Indian Claims Office (IRO), and Indian Lawyers League (ILA). The Law Board of the National Indian Law Institute (NILL) and the Native Law Board of South America and Northern California (NLEB) are also part of the Indian Legal Fund and part of the Indian Law Fund Advisory Council. These agencies also provide legal advice and aid to law enforcement agencies.\5\ Some of the Indian law courts include:
In most places, federal, State and Indian Court (Indian Law), Indian Law Officers, Indian Lawyers’ League (ILLS) attorneys, and Indian Law Judges are employees of the Indian Law Boards of the United States. The Indian Laws Act and Indian Law Rules (Indian Law Rules) states that Indian law boards need to comply with certain federal, state, and Indian Judicial Service (ILAS) responsibilities (see Resources for Indian Law Officials & Their Responsibilities for further information). For more information, see the federal government’s Indian Law Laws Bulletin (August 1999), which is a monthly guide for federal officials with Federal law or their agencies on dealing with Indian matters.